Supreme Court Justice Thurgood Marshall discussing his personality and skill as a storyteller and impact on their careers well hear from judges and harvard law professor and elena kagan. Im Doug Ginsburg and since nobody else seems here to do it, ill introduce our panel for this evening. This look back at Justice Thurgood marshall. To my immediate left if you have not guessed it Justice Elena kagan. Justice kagan was with Justice Marshall in what year. 87. Seems like yesterday, after having attended princeton and then oxford and then harvard for law and serviced in judge mcvaus chambers and all of our panelists served on a court. It was a good court. It was a great court. And was in the White House Council office and then Clinton Administration and then in the policy council as deputy director. Couldnt she keep a job apparently. Taught at university of Chicago Law School and then after getting tenure there moved on and settled at harvard. Not very long after that became the dean of Harvard Law School and then couldnt keep that job either and became associate solicitor general first and then associate justice of the Supreme Court. Judge Paul Engelmayer is judge in the Southern District of new york and has been since 2011. And i should have said, elena, you came on the court in 2010 mmhmm. And paul went to harvard and to harvard for law school and clerked for judge wald on the d. C. Circuit and then was in the Solicitor Office when drew days was solicitor general. Pardon me. And then was in private practice before going on the bench. And professor randall kennedy, the middle to my left, who was a roa roads scholar and clerked for judge kelly wright and joined the harvard faculty in 1984 and has been a very productive prolific author of books, i think remarkably when most people of his colleagues are writing law review articles, hes writing books. And of particular interest, he is a member of the American Academy of arts and science and the american philosophical association. So we have a array of three marshall clerks, four marshall clerks with myself. I was there as well in 7475 for d. C. Circuit clerks and all of us, like many virtually all of our other alumni of justice marshals chambers i think were very much affected in our careers and in our lives by the experience of having been in his chambers and in close contact with him for a year. So were going to reminisce a little bit, if thats okay. Im not sure there will be more to it than that for you, but i hope that is of some interest. And so im going to start with you, elena, unless you want to pass. Okay. You dont let people pass in class, did you . No, never. Good. So why dont you tell us about how the clerkship affected your career. Starting with the big one. How it affected my career. You know, i think clerking on this court affects everybodys career who does it. I mean, its probably more than as justified, its something that the you put it on your resume and all of a sudden doors open, sometimes justifiably so and sometimes not. But i think what is much more important to me is just how the experience of clerking for Justice Marshall affected who i was and what i thought was important in the world. He was you couldnt survive a year in his chambers without realizing that there were things that you knew nothing about and it was an eyeopening experience in many respects other than just learning about the law. And it gave you an appreciation for people who had fought for justice all their lives and the importance of their work. Especially his work. And it made you think about what you were doing and why you were doing it. And not that one could never hope to have a career that was so much justiceseeking as his was, but i think the his voice in my head never went away in terms of trying to figure out what i was doing and why. So you still hear the call knucklehead. Knucklehead was on a bad day. Shorty was on a good day. With knucklehead you had to share with everyone else. Short was maybe just yours. Paul. Do you have something on the same question about the arc of your career . Much of what elena said, i everything she said i agree with. From my perspective, if you came to the clerkship thinking about doing Public Service and you spent a year with the greatest legal Public Servant of the 20th century it would only reinforcement that impulse. Midway through the clerkship i spoke about applying to becoming a assistant u. S. Attorney and not knowing how he would react and very delighted that he was enthusiastic. It turned out that he was quite a big fan of the department of justice which he had served as s. G. And as it happened my year three of the four of us became assistant u. S. Attorneys out of the clerkship and he was encouraging about that. And in addition to what elena said, hearing his stories about trial courts, lit a fire me to be a trial lawyer and engage with the craft of being in a courtroom. It reminded me of how important it was to know the facts and to know the record and one of the lessons you learned from Justice Marshall was that as important as the law was, facts are probably in most cases much more important and listening to the way he recounted the cases in his career and how decisive evidence and witnesses had been taught you that a lawyer as a craft being one with the evidence. As a judge, i think about him almost every day and i think about him in this context. I think about the defendants in my courtroom, i think about the family members who were there for sentencing or pleas in particular, and that this may be the only day for these people in which theyre ever going in a courtroom and one of the things that you learn from Justice Marshall is you want to make sure that there is a decency and honor and dignity which attended the way a judge comported himself in court so for the people in a federal court for only one day in their life they feelen nobled by the experience and treated fairly. That is something i learned from him and taken with me and ill end by saying ive got his picture up in my reception area in my chambers. It is a picture of him on the steps of the Supreme Court on may 17th, 1954. And i walk in there every day and i look at it and it reminded me were in the justice business. I have a lithograph of him as well in my office. Something im very pleased to have that ive acquired not long after leaving chambers. Randy . Well, it was great pleasure working for Justice Marshall. And it has made a big impact working for him on my career. I didnt know at the time that i was going to be a legal academic. But you turned out to be a legal academic and one of the subjects that i write about is Race Relations law. And what could have been better preparation than working for Justice Marshall, known before he got on the bench as mr. Civil rights. And over the course of the year, one of the great benefits of working for him was he knew, it seemed everyone, he had many stories and he was very generous with his time and generous with his recollections. And i would just ask him lots of questions. And it turns out that much of what he shared with me became of use in my professional life as a an academic and still very much of use. I see weve been joining by mrs. Marshall. Good to see you. Welcome. Elena, ill come back to you, if i may. Tell us about a memorable opinion by the justice. And whether you worked on it. Ill give you two, actually. And one will be not surprising and one may be more surprising to folks. And both were the year that i clerked for Justice Marshall. We used to call him judge, he would call him t. M. We never called him Justice Marshall. But so here is the one that maybe wont be so surprising. It was this is one that really brought on the knucklehead denomination. It was a case called cotter mass and it was about a school girl, a white 10yearold, 12yearold girl in rural kansas, i believe it was. And she lived some miles away, more than 15 miles away from the nearest school and there was a bus service but they made you pay. And they wouldnt give a waiver for even for indigent students so the result was this girl didnt get to school. And there was a challenge brought to the fee schedule, to the idea of a state charging fees for the school bus which was absolutely necessary for her to get to school. And it was a constitutional challenge brought under the equal protection clause and we walked into his office and i laid out the arguments and i said to him, judge, i just think that its going to be hard for, i think her name was serita cotter moss to win and he looked at me and said why. And i said well indigent is not right and that means rational basis applies and the state has a rational basis here and he looked at me as though i must have lost my mind. Because his basic idea of what he was there to do was sort of to ensure that people like serita cotter moss got to school every morning. And as long as he was going to be on this court, he was going to vote to make that happen. We dissented in that case. The justice dissented. It was i think 63 or 72 opinion. Most of the court decided the case just as i basically laid it out to him. And Justice Marshall wrote a dissent and the reason i say i was culled knucklehead quite a lot with this case is because of all of the cases that i worked on, it was the one he was most passionate about. The idea of i think what moved him more than anything was trying to get rid of these entrenched inequality in american life. This one didnt involve race but it was all the same to him. And i would bring in a draft of a dissent and he would say stronger and i would bring in another and he would say stronger. And i would bring in another and it went on like that for quite a while until he felt like i got the right level of passion and disgust in this dissenting opinion. And obviously he communicated some of his own. He took out his blue pencil and marked it up quite a lot. So that was one. And that is the one that i think wont surprise you. But the one i think will surprise you was also that term and it was a a case called torres and it was a group of hispanic employee had brought an employment discrimination suit. And they had lost and they filed an appeal. And the secretary to the lawyer handling the appeal left out one of their names on the notice of appeal that went up to the court. And the question was whether leaving out that name was going to mean that the court had no jurisdiction to hear the appeal of this one employee of the group. The case came to us and all of the clerks thought this was an easy case, the answer should be its just a secretarial mishap and youre doing to deprive this man of his claim. What a crazy thing. In fact, justice brenton dissented but Justice Marshall ended up writing the opinion for the court in that case, saying that, yes, in fact, the court did that leaving out the name made all of the difference and the court didnt have jurisdiction to take the appeal. And this is what he said to us. He said, i spent my whole life litigating cases and you cant expect anybody to bend the rules for you. The only thing you could expect is that they apply the rules straight. And indeed people who litigated like i litigated, their salvation was in the rules. I mean, if he had a chance for success it was because of the rules. And because people decided to take those rules seriously. So the rule of law and playing by the rules was to him one of the most important principles in the justice system. And sometimes it worked against you and they put in the wrong name. But in the end especially for people who were disliked and who were disadvantaged, they needed the rules. And so you better make sure that youve create the a system where the rules are there. And i dont think he convinced a single one of us, honestly. But it was a powerful lesson for me, actually. As much or more so as listening to him talk about serita cater mass and the bus and the important of eradicating this is more about the important of rules and of law in our society and even when sometimes it doesnt cut your way. Do you something along those lines. The one decision he was most passionate about our term was richmond versus crossen which is the case adopted racial classifications for affirmative action racial classifications, involving municipal contracting in richmond, virginia. He was distressed by the outcome. What was interesting is not just his fundamental point that affirmative action is different from out and out official racism, but his focus again on the facts. And he said to me, as the clerk assigned to the system on the case, i want to make sure in the very first part of this decision or the very first paragraph that we make this the point that this is the capital of the confederacy and there is something ironic but us bending over backwards to do something about progressive about race and getting hit down and that is what we saw throughout the year. He was a deeply knowledgeable historian and what came out of his chambers was rich in history and social context and not arid. That is one of the distinct memories i have. My favorite case, my favorite opinion from the justice is a concurring opinion. It was a concurring opinion in a case called batson verse you kentucky. And in batson verse you kentucky the Supreme Court of the United States reversed an earlier opinion swain versus alabama. In swain versus alabama the court said that peremptory challenges, a prosecutors use of peremptory challenges were immune from question in the case that Defense Attorneys wanted to challenge the prosecutors use ever peremptory challenges saying it was based on race and the court said well peremptory challenges are just immune from question. If a a prosecutor is using a peremptory challenges for trialrelated reasons, any reason whatsoever, that is okay. Well two things about batson versus kentucky. First of all, batson versus kentucky was triggered by the justices use of dissents from denial of soshial arory. People dont pay any attention from dissents but the justice issues dissent after dissent to alert the bar that at least there were a couple of justices, him in particular, that was interested in the issue. And secondly, i think to educate and try to persuade his colleagues. And over the course of a year he succeeded. He succeeded in persuading other justices to come along with him. And he triggered a reassessment of swain versus alabama. And then the court agreed with his position, agreed to reverse swain versus alabama. But then the justice wasnt satisfied with that. And i wrote a concurring opinion in which he said i agree with what the court is doing but the court is not going far enough. It should get rid of peremptory challenges altogether. And it was that pushing of the envelope that brings a smile to my face and makes me think of just that that is the Justice Thurgood marshall that i revere. Since you mentioned two sorts of opinions, ill mention one other. It is not just one opinion. Its a series. So, Justice Marshall came to the conclusion that Capital Punishment is in all circumstances in violation of constitutional standards. So he dissented in all Capital Punishment cases in which somebody was sentenced to death. And that stand, too, is a stand that makes me salute him. Randy, let me ask you to elaborate about that because Justice Marshall and Justice Brennan reiterated that in every case that came along as opposed to tentative view that once something is settled that youve dissented or reiterated the dissent once, that that is it do you think this was because it was Justice Marshall or Capital Punishment or it was a philosophical difference about juris prudence. Because it was Capital Punishment. And Justice Marshall was such an unusual person. He had such a long, broad, varied career. He represented people who face Capital Punishment and, indeed, he represented people who were executed though they ought not to have been executed. Hes a person who represented people who were put to death though, in fact, they were factually innocent. And i think that had something to do with the ferventsy and passion with which he saw this particular issue. There were manyishes, several issues about which he was deeply em passioned but none more so than the question of the government taking someones life. Doug, can i jump in on that. Please. I think it reflects a deeper view about stare decisis is. He was the lawyer that got plessy reversed in brown and he would say to us this is a living constitution and when it matters we ought to not felix peaded from reassessing. If you look at the speech he gave on the bicentennial of the constitution and the glory of the constitution is that it was refreshed in 1868. That it took it took too long of a time but that eventually the court got it right. And so absolutely Capital Punishment based on his own personal experience as a criminal defense lawyer was something that he cared deeply about but a philosophical view not to be locked into what he regards as a wrong decision. Im not sure everyone is aware that the justice spent by far the better part of his career trying criminal cases. Defending rape and murder charges. Time after time in very unsafe venues for him. I remember once he said to us, he said, well, when a jury brought back a sentence of life imprisonment, that is when he absolutely knew that the guy was innocent. Yeah. Well he told a lot of stories. From that period and others in his life. And im not sure whether this is true when you were clerking for him but his practice when i was there with bill bryceon and karen hasty williams was to come back from lunch, come into the clerks bull pen, the three of us in one room, sit down in a in a leather anothinga hide easy chair and Start Talking for 30 or 45 minutes virtually every day. And telling stories. And there was some reputation over the course of the year but he had a huge repertoire. It wasnt a lot. And those stories were unforgettable. Was he doing that when you were there. He did. He didnt so many come into the Clerks Office but we would go into his office when we would talk about cases and the way it typically worked is we would talk about what was whatever on the court schedule, many more, about 140. 60 when i was there. And we would talk about the cases an then at some point we would be finished and he would segue into what was sort of story time and in Justice Marshall chambers. It was the most unforgettable experience. My one regret of the year was that not one of us was smart enough to write them all down. Because im sure i have forgotten 95 of them. And ill tell you, doug, i dont think he ever repeated one, or at least it was remarkable, how many stories he had and how he remembered which he had been there before. But a lot of them i couldnt begin to capture a lot of it. He was really the greatest storyteller ive ever come across. And it was a real kind of make you laugh, make you weep, because a lot of the stories he told were pretty rough. Pretty hard. And they were stories about his boyhood, they were stories about what it had been like to crisscross the jim crow south as a trial lawyer. Often fearing physical danger from mobs, from the police. I mean, they were terrible stories. A lot of them. But he also was a great comic storyteller. And a great comic generally. He was so darned funny in his facial expressions and hiss intonations and sometimes you were laughing when you thought what am i laughing about. This is a horrible story. But it was an unforgettable experience, both the content of the stories he had to tell and just listening to a master storyteller tell them. Ill elaborate on that. Of all of the stories that he told, which spans brown and the legal theory and strategizing that got there, the stuff that sticks in my mind is the physical courage of being a criminal defense attorney in mississippi, alabama, western florida. And the physical risk he took. He told a story about almost getting lynched once himself. He told a story about clients who were lynched. He told of arriving at bus or train stations and having to be tucked into the backseat of a car so he could be driven to a supporters home, sight unseen or moved once or twice in the middle of the night just to stay safe and all the while telling jokes about this. One time he said there is an easy way to tell if a confession has been coerced, how the question how big was the cop . And then another time he tells the story about joking with another member of his legal team about who was going to sleep nearest the window in case a bomb got thrown in. And hes making this funny. And as elena said, horrifying stories but it was part of way he drew you in and drew out theys. But if you havent read devil in the grove that, probably the single best opportunity to capture all of the stories or many of them in about a 200page writeup. And it captures what it was like for him to have almost to kill a mockingbird moment as a defense attorney in the south in 40s and early 50s. The story that i remember the most is a story about his experience in tennessee after world war ii. There was black veterans defending themselves, resorted to arms, they were charged with various crimes. He went and defended them. Got most of them off. The local police got really angry with him. Hes leaving the courthouse. Hes with another lawyer by the name of Zee Alexander lubby and so Justice Marshall is driving and the police, local police, pull him over. And hustle him into their car. And the police tells Zee Alexander lubby to stop, stop following the police but Zee Alexander lubby just follows and follows and according to Justice Marshall he thought he was a goner for sure and that the police would turn him over to the ku klux klan and then they got cold feet law alexander lubby was following. So then they go back to town and they charge him they charged Justice Marshall with driving under the influence. And they go to a local magistrate and the local magistrate said well why are you bringing this man here and the police say, well this man was driving under the influence and the magistrate said well i could tell whether or not whether this man is driving under the influence and he tells Justice Marshall, breathe in my face. And he acts this how and he said and he doesnt flinch. And he said this man has not touched a drop of whiskey. Release him. Justice marshall gets in the car, drives off, gets where hes going. Calls the naacp and said, you know what, i had not touched any whiskey before, but now im about to get drunk. Again, it is a horrible story. Its also a true story. There is a very nice book about this particular this particular event. But he always would punctuate it with his own brand of humor. Ill contribute a couple. And the stories, as you say, some of them were harsh, hard. But not in the language, necessarily. Or anything like that. Or even in the events. But one was in i think it was a rape trial in florida, black defendant, white complainant. And the jury went to deliberate and the prosecutor came over to Justice Marshall and said, see the bailive over there, ill bet you 5 that jury comes in within two minutes of the time that he finishes that cigar. What has that got to do anything. Well the jurymen have been sitting there all day, im sure they would like to have a cigar too. That is the kind of story that really stays with you. The other one was about i think it is in one of the books, it might be in laurence fishburns play. Im not sure. He came out of the courthouse i think in texas, about an hours drive from dallas where he was staying. And so it was pardon me, he was driving there in the morning, being driven there and picked up by Highway Patrol somewhere along the way. And escorted to the courthouse and when he came out the end of the day that there was also a police car there and followed him to someplace half way back to dallas and then dropped off. And when this happened the second day and he got to the courthouse, he went back to talk to the driver of the police car. Said, well what is going on . I mean, describe just what i just described. And the sheriffs deputy said, sheriff said youre not to get killed in this country. So what was your First Impression when you met the justice . Well, my first conversation with the justice came before i met him. It was at that time he was he picked clerks without interviewing them. He had some former clerks who did his clerkship selection. So i had been through the process and he had decided to make me a job offer. And he called me. And it was the summer after i graduated from law school. And he called me and i remember the call actually came into the laurel view office and they had to run and find me and get back and i came back i found a phone and finally got him on the phone. And he said so you want a job . And i said, id love a job. And he said, whats that, you already have a job . And i was like, oh, my gosh, he didnt hear me. No, no i really i just said i would love a job. No, i want this job. And i dont have a job. And i dont know, if you already have a job. And this went on three or four times before it was like i figured it out and he took pity on me and im not sure which happened first. But the only other thing i remember about that conversation, before he hung up the phone, was he said well i hope you like writing dissents. And we did write our share of dissents that year. Lest you feel too special. I was in the office when he played that on another. [ laughter ] so what about your First Impression, paul or randall . Similar phone call without the you already have a job. But he said to me, you still want the job . And i said yes. And he said. Get ready to write dissents and he got off the phone and i was studying for the bar and this all happened in maybe 35 seconds. And there is this quality of Somebody Just pulled a prank on me. I have no idea if this really happened and spent the next hour trying to figure out where you go in washington to confirm that Thurgood Marshall just made you a job offer. Had a similar telephone call. I remember the first time i met Justice Marshall facetoface. And i was very nervous about it. Very nervous. Because the reason i was it was a big deal in any event. Youre meeting a justice. A person youre going to work to. But it was even bigger than that for me. Because i heard about Thurgood Marshall all my life. Id heard about Thurgood Marshall all my life because my father in columbia, south carolina, went to see Justice Marshall argue a case rice versus elmoor. One of the last of the white primary cases. And throughout my childhood, i heard my father talk about the importance of that case for him. Now, my dad didnt really know what the legal issue, the big legal it was a state action issue. But he didnt pay any attention to that. The thing that my father talked about over and over and over again was that the judges in the courtroom called Thurgood Marshall mr. Marshall. And the reason why that was so significant is that because of jim crow etiquette, black pen were not referred to as mister. If you were a black physician, you might be called doctor so and so if you were a black minister you would be called reverend so and so but black men did not get the honor of mister. And it was a sign of how distinguished Thurgood Marshall was that the judges and the other lawyers called him mr. Marshall. I heard about that all the time growing up. And so with that back drop, of course, it was a tremendous thrill. Was it part of why you became a lawyer . In part, im sure. My father just again, it was just im sure it influenced my brother. I have an older brother who is a lawyer. But we heard about we heard about that argument a hundred times. I dont know if it is one of the books but there is a story about the justice needed when he was practicing in his early 50s and needed a writ and needed to see the chief justice and the chief justice was not to be found. But he knocked on a door in the hotel, it was a hotel in connecticut, where the big conventions often are. K street in connecticut. Any way, big hotel there. Mayflower. Mayflower. Someone had given him a tip and there is justice playing poker with president truman and two other men. I dont know who they were. He went over to chief justice and opened up this paper, must have had an affidavit in it because the chief justice looked up and said, mr. Marshall, is all this true . And he said, yes, sir. Sign the paper. Left. Never noticed that it was the president in the room. Never said anything to him. If he noticed, he didnt say anything to him. Those were the days. Learned about that afterwards. Yeah. A little bit more informal the way we did business back then. I remember him telling that story with this quote, is that the chief justice saying if youve got the guts to open that door, ive got the guts to sign it. Much better. Thank you. Any First Impression when you finally met him, randy . Um, he was he was a large man and very imposing. I think nowadays sometimes the views you get as sort of an evunucular welcoming. He was a tough boss. And intimidating. And he definitely laid down how he wanted things done, and you knew how he wanted things done and you paid attention. So i mean from the very from the getgo with me, in any event, i was very attentive to him. And over time, i suppose, the intimidation went away. But i always found him imposing. I think it was the combination of his physical stature, manner and just knowing of him as a historical figure, essentially. I think it was so intimidating. Or at least overwhelming at first. Go ahead. No, much the same. As intimidating as he was, i think back also on how accessible he was in the sense that you really understood as his clerk what he was thinking about cases and the historical events he was recounting. He certainly didnt hide the ball. And he in the roughest language and most explicit language would tell you who the heroes and villains were and the advocacy we had just seen. He would share views about colleagues, he read us about a letter he was to read to the chief justice on the occasion of the annual Holiday Party which we have a copy of this, essentially the following, dear chief, as usual i will not attend the annual christmas party. I still believe in the separation of church and state. So he was letting us into the tent. So as imposing as he was, i appreciate that he gave us access to his take on just about everything. And he was he cared a lot about what we thought about things. He listened to us, he asked us questions. There was a real dialogue between the clerks and the justice. But gosh, did he know who was boss. So sometimes you would get this treatment of he would point over to his wall where there was a commission and he would say, now what is over there. You could go take a look at that. And whose name is on that commission . And then he had this other sometimes people would say, well you have to do x, y or z. Like you have to in that case i told you about, you have to vote for mr. Torres and he would say there are only two things that i have to do. Stay black and die. He didnt repeat stories, but that expression, he repeated a lot. He had another, he had another one that went along with that. I remember once arguing with him about a case and he said, thank you very much. And sort of put his hand up. And i said well, let me try again. And i did this a couple of times. And finally i said, you know, Justice Marshall, let me just say, two years ago you said this. And if you go the way that you want to go, that youre proposing to go, it will be it will be just completely contradicting what you said two years ago. And he looked at me and he says do i have to be a damn fool all my life . Before i forget, i want to say about the stories. As many as there were. I never heard one in which he was a hero. He just told you what happened. Yeah. You had to look it up afterwards to find out. But he was not selfagrandizing in any way. I think he very much wanted to pass on to us and ultimately well beyond us a real sense of what it was like for him. Many years later, he did sit down with Juan Williams for a long time and tell these stories and talk about a lot of things that he hadnt talked about for publication before. I thought the only thing the only jarring note in that whole book was the subtitle of the book. It was Thurgood Marshall, american revolutionary. Revolutionaries dont follow the rules. Revolutionaries were out in the streets. And he had no affection for people out in the streets. None. Im sure randy has some thoughts on this about his relationship with the Civil Rights Movement generally. Well, it was a complex one. On the one hand, he was mr. Civil rights. And over a long period of time, through just extraordinary work, amazing diligence, amazing persistence along with extraordinary skill, created the groundwork for the civil rights revolution. At the same time, he was he viewed the world very much through a lawyers lens. And his way of doing things was to attack through the courts what you didnt like, have those things invalidated and after they were invalidated, then move. He was not a fan of direct action. And there was tension, i think. Its documented. There was real tension between him and the students who were you know, the people who engaged in sitins. There was real tension between him and Martin Luther king junior. There was tension. He respected them and they, with good reason, respected him. And to move the world in the way that the champions of the Civil Rights Movement moved the world, you needed all sorts of people. You needed division of labor. You needed people who saw things in different ways and pushed in different ways. But, yeah, he had it was a complex relationship with some of the other members of the you know, champions of racial justice. Division of labor reminds me there was one among the clerks, did you have anything like that . Division of labor among the clesh clerks. What was it . Bill bryson took the cases. Served him well. Carol took civil rights and anything related cases. I got what was left. So that was International Case and securities and labor. I mean, there was never a moment in which never a matter on which we had any disagreement or had to work out exactly what he wanted to say, because we were on completely on the same wavelength. In that respect, he was a conservative person. He wasnt trying to upset the securities laws. Or make waves just to make waves. The way he did it with us, he made it very clear early on that we were to be looking over one anothers shoulders. So he told us early on, if im mad with one of you, im mad with all of you. And so we would look over one anothers work. We did that. We were particularly conscious of his he was completely intolerant of lateness. You could not be late about anything. One minute was too late. And so, you know, we sort of had a collective punishment. One other thing i remember about the year, and it had to do also with my remarks about Capital Punishment. On the night of an execution, there would always be one clerk who had to stick around for anything late breaking. Some of the time, when everything had been done, the person who had to stick around had to call up the justice at his home. And on i did it a bunch, because my fellow clerks all three of the other clerks were married. I was unmarried. So i volunteered to stick around. Nobody was looking for me. But on those evenings when i would call the house, i would pray that mrs. Marshall would answer the phone. I would be praying that mrs. Marshall answered. Because it made a big difference. The big difference it made was this. If mrs. Marshall answered the phone, the justice would come on and he would be very civil. He would be very nice, very polite, very civil. If she did not answer the phone and you got to him first, it could be a very tough conversation. I remember about the capital cases that his charge to us was not merely to execute the formal dissent based on his categorical view. He said to us, i want you to comb each of these cases to see if theres some case specific ground under which we can get this reversed. This was not an abstract point for him. Wasnted ed t he wanted to save a life. Those phone calls came with a question, have you dug into this, is there something specific about this case we can say . This is one of my most vivid memories. For many reasons, the Capital Punishment work played an even more significant role in the court than it does today. First off, there were more executi executions. So, you know, a week, there would usually be several executions a week at that time. There were fewer procedural bars. So a lot of what we do now is people on death row come up and theres no way even to hear the merits of the claims because since that Time Congress has put into place a whole lot of rules that many, many, many claims are procedurally barred than they were then. I think the third thing was that Death Penalty law at that time was just much less well developed. So you didnt have there were a lot more open spaces in terms of what was allowed and what was not allowed. So there were really quite a lot of these executions where there was a very serious issue that remained open and that you could get to. Randy talked about dissents from denial in one area of law. But i remember, it wasnt just the typical thing that he and Justice Brennan used to do how did it go again . The one liner. I forget how it went. Consistent with my view. Yeah. We spent we drafted so many dissents from denial in Death Penalty cases that year. I would be surprised if we didnt do 25 of them, 30 of them in a year. I must have been there during either i was completely oblivious or i was there during the happy interim when there were no cases, 74 and 75. That sound about right . Yeah. Okay. Thank goodness. How much time do we have, if any . [ inaudible ] thats fine. Instead of a question, why dont you just tell us what your favorite recollection of the year, not just in chambers but the year that you spent here. Somebody else start on this. I will start. This is outside of chambers memory. Holiday time, late one day he told us that he was going to take us out to lunch the following day at a seafood restaurant. We get into a car. We go to a seafood restaurant. We walk in. He is leading the way. As Thurgood Marshall walked into the packed dining room, you could see people begin to realize who had walked in and slowly one by one then everybody they just got up and just stood for him. They stood for him for maybe 60 seconds. You know, he nodded and everyone sat down. It was a moment that allowed you to see him the way the world saw him. That reminded you, this was not your ordinary supreme Court Justice. This was clerking for a living legend. There were moments like that with elevator operates or tourists or others who would bump into him. He is out in the world and you realize, put aside what we have been talking about in the Conference Room, forget story time, the individual cases. This is the magnitude of the man. This is what he meant to our country. I think we all saw it after he passed away and his clerks had the honor of serving as an honor guard. We took an hour shift in the middle of the night as people streamed in over there in the foyer. People were overly overtly emotional. People were bringing copies of brown versus board of ed and leaving it there. You could sense just the gratitude to him and just the enormous space he occupied in our in the 20th century. My story really is just having that window of an opportunity to look at him through others eyes. I guess i would echo that and say that probably the most enduring snapshot i have of that year was on the very last day that i worked for him. Because on that day, i mentioned e earlier my father. My father came to the court that day. The justice was very nice to my dad. My dad talked about rice verses elmore and seeing him. They had a very nice talk. And these two people whom i revere, the memory of that is a deep memory with me. I also remember when my parents came to the court. He was nicer to me that day than he was before or since. It was the only day i knew he liked me. Thank you all for being here for this hour and this tribute to the justice. I hope there will be many more in the future with others. Carrying the stories forward as long as we can. Thank you. It was a privilege for us. [ applause ] my name is jim ohara. I am a member of the board and of the executive committee of the Supreme Court historical society. The society is deeply honored to be the host of tonights National Heritage lecture. A few observations before the evening is over. First, justice kagan, judge ginsburg, judprofessor kennedy, thank you for your insight and stories of your times with Justice Thurgood marshall. This has been a warm and wond wonderful evening. I am honored to have been a part of it. The National Heritage lecture is sponsored each year by the Supreme Court historical society, the White House Historical society and the United States capitol historical society. Since 1991, when Justice Anthony kennedy delivered a rousing talk on president roosevelts 1937 Court Packing plan, the three organizations have rotated hosting duties each year. This evenings National Heritage lecture is, of course, a celebration of Justice Thurgood marshalls 50 years after his ascension to the Supreme Court. The society and all of us here are deeply honored to be joined this evening by his wife, is a celia marshall, his sons Thurgood Marshall junior and john marshall, his daughterinlaw Jean Marshall and his grandson Edward Patrick marshall. Thank you so much for being here and honoring us with your presence. [ applause ] thank all of you for coming. And please join us in the reception in the east and west Conference Room which are directly to your right as you leave the courtroom tonight. Tonight we will be serving two recipes from justice and mrs. Marshall that are featured in the societys most recent publication, table for two. We are serving Justice Marshalls maryland crab soup and mrs. Marshalls mango bread. Copies of tables for nine are available at the societys gift shop along with many other books and many other gifts. The gift shop is on the ground floor of the court and will remain open throughout the reception tonight. Ladies and gentlemen, the 2018 National Heritage lecture is now adjourned. [ applause ] you are watching a special edition of American History tv airing now during the week while members of congress are working in their district because of the pandemic. Tonight at 8 00, the university of Oklahoma Center for the study of American Indian law cohosted a decision on cases involving the forced relocation of cherokee nation. American history tv now and watch over the weekend on cspan3. The coronavirus pandemic is having an impact on the congressional schedule. House mamajority leader announc they wont be back for two more weeks. Members have been advised they would have sufficient notice about returning to capitol hill if legislation related to the coronavirus was to be considered before may 4. Watch live coverage of the house on cspan, see the senate on cspan2. The United States Public Health service originated with an act of congress in 1798 for the relief of sick and disabled seamen. The role and responsibilities of what is now called the commissioned corps of the u. S. Public Health Service has changed and evolved over the years since then. Next on reel america, from 1936, the work of the Public Health service. This nearly hour long Public Health service film details the history and shows the many activities of the disease fighting service. This Program Includes graphic scenes of disease that may be disturbing to some viewers
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